IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · For the reasons stated in the accompanyi ng memorandum, the Defendants, Linda H. Lamone, State Administrator of Elections,

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

O. JOHN BENISEK, et al., Plaintiffs, v. LINDA H. LAMONE, et al., Defendants.

* * * * * *

Case No. 13-cv-3233

* * * * * * * * * * * * * * * * * * * *

MOTION FOR PROTECTIVE ORDER FROM RULE 30(B)(6) DEPOSITION

For the reasons stated in the accompanying memorandum, the Defendants, Linda H.

Lamone, State Administrator of Elections, and David J. McManus, Jr., Chair, State Board

of Elections, move pursuant to Fed. R. Civ. P. 26(c)(1) for a protective order from the

deposition notice served on them by the plaintiffs under Fed. R. Civ. P. 30(b)(6), on the

ground that the notice is unduly burdensome because it seeks information not known or

reasonably available to either the State Administrator of Elections or the State Board of

Elections.

A proposed order is attached.

Case 1:13-cv-03233-JKB Document 118 Filed 01/16/17 Page 1 of 2

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Respectfully submitted,

BRIAN E. FROSH Attorney General of Maryland

Dated: January 16, 2017 ___/s/__Jennifer L. Katz______________ JENNIFER L. KATZ (Bar No. 28973) SARAH W. RICE (Bar No. 29113) Assistant Attorneys General Office of the Attorney General 200 St. Paul Place, 20th Floor Baltimore, Maryland 21202 (410) 576-7005 (tel.); (410) 576-6955 (fax) [email protected]

Attorneys for Defendants

Case 1:13-cv-03233-JKB Document 118 Filed 01/16/17 Page 2 of 2



* * * * * *

Case No. 13-cv-3233

* * * * * * * * * * * * * * * * * * * * MEMORANDUM IN SUPPORT OF DEFENDANTS’

MOTION FOR PROTECTIVE ORDER FROM RULE 30(B)(6) DEPOSITION

The Plaintiffs have served the Defendants, the State Administrator of Elections and

the Chair of the State Board of Elections (together the “Elections Officials”), with a Rule

30(b)(6) deposition notice that seeks to hold the Elections Officials responsible for

designating and preparing deponents to testify about information that is not within the

knowledge of the Elections Officials or anyone employed by them or the agencies they

represent, but that is instead held by two independent State departments, a non-

governmental entity, and 24 individuals who are not current or former employees or

members of the State Board of Elections. See Ex. 3, Rule 30(b)(6) Dep. Notice. These

other individuals include former Governor Martin O’Malley, Maryland Senate President

Thomas V. Mike Miller, Jr., Maryland House of Delegates Speaker Michael E. Busch, and

numerous of their current and former staffers; all members of the General Assembly. The

Plaintiffs contend that this deposition is proper because the State Board of Elections has

been able to obtain certain documents from other governmental entities, although much of

Case 1:13-cv-03233-JKB Document 118-1 Filed 01/16/17 Page 1 of 19

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the information the plaintiffs seek through this deposition has not been provided to the

State Board of Elections, but rather has been withheld on the basis of legislative privilege.

For the reasons that follow, this Court should enter a protective order significantly limiting

the scope of the Rule 30(b)(6) notice or striking the majority of the topics in their entirety.1

BACKGROUND

Because the Plaintiffs’ rationale for serving their exceedingly broad Rule 30(b)(6)

deposition notice is based largely on the prior willingness of the Defendants, through their

counsel, to obtain information from other State entities in the discovery process, a

discussion of undersigned counsel’s efforts to expedite discovery and related

communications with Plaintiffs’ counsel is warranted.2

On October 6, 2016, counsel engaged in a teleconference to discuss preliminary

discovery and scheduling matters. At that time, undersigned counsel expressed their

1 The Defendants have agreed to produce a Rule 30(b)(6) deponent – on a mutually

agreeable date – to testify to certain topics in the notice. Specifically, the deponent would testify in response to: (1) topics 30-35, to the extent the testimony is relevant to this litigation and within the scope of information known or reasonably available to the Elections Officials, if, following proper consideration of burden and receipt of responses to substantially identical requests which are not yet due, it is still required; and (2) topics 26-28, subject to the similar restrictions, with the understanding that the Plaintiffs’ questioning on these topics will not seek the legal basis for the Defendants’ affirmative defenses nor seek attorney work-product. See Fidelity Mgmt. & Research Co. v. Actuate Corp., 275 F.R.D. 63, 64 (D. Mass. 2011) (explaining that a 30(b)(6) deposition is not the best method for obtaining information about a defendant’s affirmative defenses, which are better sought through contention interrogatories, because “drawing the line between questions which seek to elicit facts and questions which will lead to a revelation of work-product matters can be difficult”).

2 A lengthier discussion of counsels’ conduct during discovery is included in the Defendants’ response to the Plaintiffs’ motions to compel, which is being served on the Plaintiffs contemporaneously with this motion pursuant to Local Rule 104.8.


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willingness to engage in informal discovery mechanisms to limit or eliminate the need for

non-party subpoenas and to expedite any non-party subpoena requests to other potential

fact-witness State agencies and officials through coordination with colleagues within the

Maryland Office of the Attorney General (“OAG”). By way of explanation, undersigned

counsel stated that the OAG, unlike the offices in some other states, provides representation

to all state entities and State officials and employees. The scope of this representation is

set forth by statute in Md. Code Ann., State Gov’t § 6-106.

Separately during this call, undersigned counsel explained that the OAG would

move to quash deposition subpoenas served on members of the Governor’s Redistricting

Advisory Committee (“GRAC”) on legislative privilege grounds.

Thereafter, undersigned counsel, on behalf of the Defendants, attempted to facilitate

the collection of documents and information relevant to the subject matter of this

proceeding from a number of state agencies and actors who are not in the control of the

Elections Officials or the OAG, but who it was believed may nonetheless be willing to

cooperate in certain aspects of that initial effort; that included the Maryland Department of

Planning, the Maryland Department of Legislative Services, individual members of the

GRAC, and staffers to the legislator members of the GRAC. Many of these efforts were

coordinated through colleagues within the OAG who represent these persons and entities.

As a result of these efforts, Defendants, through undersigned counsel, provided to

Plaintiffs’ counsel nearly 3,000 pages of Bates numbered documents, including all of the

transcripts of the GRAC hearings; testimony and comments submitted to the GRAC; third-

party plans submitted to the GRAC; Census data compiled by the Department of Planning


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and provided to the GRAC; a copy of the briefing book compiled by the Department of

Planning for use by members of the GRAC; the GRAC’s public statements on the proposed

congressional plan; public comments submitted in response to the proposed congressional

plan; copies of the bill files for SB1 and the alternative bills considered by the General

Assembly, in addition to a copy of the files generated by Maptitude that were translated

into the text of SB1; and an audio file of the legislative hearings on SB1. Many of these

documents were attached as exhibits to the parties’ Joint Stipulations (ECF No. 104). In

addition, the Department of Legislative Services provided non-privileged information used

to craft the Defendants’ proposed joint stipulations.

Thereafter, plaintiffs’ counsel made proposals about the scope of formal discovery,

proposing that each side be limited to 25 interrogatories, 25 requests for admission, 30

requests for the production of documents, and 10 fact-witness depositions. At the same

time, a date proposed by the plaintiffs for the conclusion of fact discovery was discussed

with those limits in mind. The defendants, through counsel, agreed to these proposals,

which were subsequently memorialized in an order of this Court (ECF No. 108).

On November 17, 2016, counsel for Plaintiffs sent, by electronic mail, the plaintiffs’

first set of requests for production, first set of interrogatories, and first set of requests for

admissions. These three documents requested information in the possession of non-party

state entities, including former GRAC members, members of the General Assembly, the

former Governor, and other state agencies like the Department of Planning. See Ex. 4,

Doc. Reqs. 3-5 (requesting “All Documents reviewed or relied on by” the GRAC, the


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General Assembly, and the Governor in developing the 2011 congressional redistricting

plan).

In response to these discovery requests, Defendants, through undersigned counsel,

provided responsive information obtained from non-parties. The vast majority of this

information came from the Department of Planning in the form of documents relating to

the 2011 and prior redistricting processes generally. In their responses to discovery and in

meet and confer sessions conducted with the Plaintiffs on December 20 and 21, 2016, the

Defendants, through undersigned counsel, explained that although they had sought

responsive documents from GRAC members Thomas V. Mike Miller, Jr., the President of

the Maryland Senate, and Michael E. Busch, the Speaker of the Maryland House of

Delegates, both President Miller and Speaker Busch had asserted legislative privilege over

documents and information about their legislative activities related to the 2011

congressional redistricting process, and so had not provided any such documents. At no

time during the pendency of this litigation or prior to the initiation of this litigation have

the Defendants had access to these materials.

During this time, on December 7, 2016, Plaintiffs served non-party document

subpoenas on President Miller, Speaker Busch, former GRAC Chair Jeanne Hitchcock,

and former GRAC member Richard Stewart. Of particular relevance here, both President

Miller and Speaker Busch (a) provided responsive documents that were not protected by

legislative privilege, (b) asserted legislative privilege over documents reflecting their

legislative activities and the legislative activities of their office staff, and (c) waived


6

legislative privilege over draft maps created by the GRAC in order to facilitate this

litigation. See Ex. 5, S. Brantley letter to S. Medlock.

Despite the Defendants’ repeated representations that they did not have access to

material that was being withheld by President Miller and Speaker Busch on legislative

privilege grounds, and the assertions of these privileges by President Miller and Speaker

Busch in response to non-party subpoenas, the Plaintiffs have moved to compel this

information from the Defendants, arguing that the Defendants have control over documents

within the possession of every member of the GRAC and indeed every member of the

General Assembly. (Pls.’ Mot. to Compel Defs. (served pursuant to L.R. 104.8) at 4.)

Within days, the plaintiffs also moved to compel this information from the non-parties who

are asserting the privilege. (ECF No. 111.)

In the meantime, undersigned counsel became aware that Plaintiffs’ counsel was

engaging in ex parte contact with persons who were known or reasonably should have been

known by Plaintiff’s counsel to be represented in this matter by the Office of the Attorney

General, including President Miller, Speaker Busch, Jeanne Hitchcock, and Richard

Stewart. See Ex. 6, S. Rice letters to S. Medlock. Plaintiffs’ counsel termed this

unauthorized, undisclosed, ex parte communication with represented parties “informal

discovery.” Ex. 7, S. Medlock email to J. Katz. Following undersigned counsel’s repeated

requests that Plaintiffs’ counsel cease this conduct, to the extent they were not seeking to

redress their clients’ grievances (see Md. Rule 19-304.2(c)), the Plaintiffs requested that

the Defendants consent to increasing the number of depositions in this matter from 10 to

15. Id. The Defendants objected but offered to engage in proper “informal discovery”


7

with Plaintiffs. Ex. 8 (emails exchanged between J. Katz and S. Medlock) at 4, 6

(explaining the Defendants’ objections to the increased number of depositions and

undersigned counsel’s understanding of “informal discovery”). The parties were unable to

arrive at agreeable terms on the scope of this “informal discovery,” with the Plaintiffs

increasing with each communication the scope of the proposed terms. See id. at 1-2

(plaintiffs’ counsel stating that plaintiffs’ informal discovery proposal would not be limited

to the initial proposal of 10 legislators, but would be unlimited and include legislators,

legislative staff members, or staffers in the Governor’s office).

The Rule 30(b)(6) deposition notice served on the Defendants, seeking information

from 24 individuals unaffiliated with the State Board of Elections, every member of the

General Assembly, two independent state entities, and a non-governmental organization,

is a bald attempt to skirt the deposition limit in this case and to continue to try to gain access

to privileged material through the State Board of Elections, despite the Defendants’

repeated assertions that they have no access to this privileged material.

ARGUMENT

Under Rule 30(b)(6), a governmental agency shall designate one or more

individuals to testify on the agency’s behalf “as to matters known or reasonably available”

to the governmental agency on which examination is requested. Fed. R. Civ. P. 30(b)(6).

As Judge Messitte has explained, “[t]he 30(b)(6) procedure is meant to ‘curb the bandying’

of organizations where a series of organizational employees are ‘deposed in turn but each

disclaims knowledge of facts that are clearly known to the persons in the organization and

thereby to it.’” Wilson v. Lakner, 228 F.R.D. 524, 528 (D. Md. 2005) (quoting Fed. R. Civ.


8

P. 30(b)(6) Advisory Committee Notes (internal quotation marks omitted)). In other

words, the purpose of the Rule 30(b)(6) requirement that an entity “review all matters

known or reasonably available to it . . . is necessary in order to make the deposition a

meaningful one and to prevent the ‘sandbagging’ of an opponent by conducting half-

hearted inquiry before the deposition but a thorough and vigorous one before the trial.”

Paul Revere Life Ins. Co. v. Jafari, 206 F.R.D. 126, 127–28 (D. Md. 2002) (quoting United

States v. Taylor, 166 F.R.D. 356, 361-62 (M.D.N.C. 1996)).

To effectuate this purpose, the rule imposes a “duty to prepare the designee[ ] . . .

[that] goes beyond matters personally known to the designee or to matters in which that

designee was personally involved.” Id. (quoting Poole v. Textron, Inc., 192 F.R.D. 494,

504 (D. Md. 2000) (citations omitted)). A designee must “provide [the agency’s]

interpretation of documents and events” and the agency’s “subjective beliefs and

opinions.” Taylor, 166 F.R.D. at 361. “[P]roblems with lack of corporate memory ‘do not

relieve a corporation from preparing its Rule 30(b)(6) designee to the extent matters are

reasonably available, whether from documents, past employees, or other sources.’”

Martinez-Hernandez v. Butterball, LLC, No. 5:07-CV-174-H, 2010 WL 2089251, at *7

(E.D.N.C. May 21, 2010), order aff’d in part, vacated in part on other grounds, No. 5:07-

CV-174-H(2), 2011 WL 4549101 (E.D.N.C. Sept. 29, 2011) (quoting Taylor, 166 F.R.D.

at 361). As such, the agency’s designee “is not testifying as to his personal knowledge of

events, but instead is speaking for the entity as a whole.” Covington v. Semones, No. CIV

A 706CV00614, 2007 WL 1052460, at *1–2 (W.D. Va. Apr. 5, 2007) (citing Int’l Ass’n of

Machinists and Aerospace Workers v. Werner-Masuda, 390 F. Supp. 2d 479, 487 (D. Md.


9

2005)). “This necessarily implies that the individual must review and investigate into the

matters known to or reasonably known to the entity.” Id. (citing Werner-Masuda, 390 F.

Supp. 2d at 487; Poole ex rel. Elliot v. Textron, Inc., 192 F.R.D. 494, 504 (D. Md. 2000)).

However, as a number of federal courts have made clear, “[t]here is no duty imposed

to inquire into the knowledge of another entity.” DSM Desotech Inc. v. 3D Sys. Corp., No.

08 C 1531, 2011 WL 117048, at *8 (N.D. Ill. Jan. 12, 2011) (concluding Rule 30(b)(6)

“does not require one entity which is not under the control of a second entity to inquire into

and testify as to the knowledge of the second entity”); Covington, 2007 WL 1052460, at

*1–2 (quashing Rule 30(b)(6) deposition notice seeking to have defendant governmental

entity investigate a second governmental entity and provide information where two entities

“maintain[ed] a close relationship” but where second entity was not an employee of,

subject to, or under the control of the defendant); Taylor, 166 F.R.D. at 360 (stating that

the purpose of Rule 30(b)(6) is to allow for the streamlined discovery of information known

to a particular entity by allowing for the designation of one, or more, specific individuals

who would provide binding testimony as to the knowledge of that entity regarding given

matters). Even when entities are affiliated with each other, the duty of a Rule 30(b)(6)

designee extends only to those matters in which the deposed entity was involved and has

knowledge, and, thus, a “designee need not acquire knowledge from an affiliate on matters

in which the deposed [entity] was entirely uninvolved.” Coryn Grp. II, LLC v. O.C.

Seacrets, Inc., 265 F.R.D. 235, 239 (D. Md. 2010).

Here, the Plaintiffs’ 30(b)(6) deposition notice seeks to make the State Board of

Elections responsible for preparing a designee to testify about information known to two


10

other State entities, a non-governmental organization (the Maryland Democratic Party),

every member of the Maryland General Assembly, and 25 individuals who are not current

or former employees of the State Board of Elections, including former Governor O’Malley,

the five members of the GRAC, the former Secretary of the Department of Planning, one

former and one current employee of the Department of Legislative Services, a former State

Senator, former Secretary of State John McDonough, and 13 current and former staffers to

Senate President Miller, House Speaker Busch, and former Governor O’Malley. As such,

the deposition notice far exceeds the proper scope of a 30(b)(6) deposition.

On its face, the deposition topics seeking this information are so patently overbroad,

unduly burdensome, and oppressive, that they should be stricken in their entirety. See

Nicholas v. Wyndham Int'l, Inc., 373 F.3d 537, 543 (4th Cir. 2004) (“[U]pon motion of a

party and ‘for good cause shown,’ the court in the district in which a deposition is to be

taken may ‘make any order which justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense,’ including an order

that the discovery not be had.”) (quoting Fed. R. Civ. P. 26(c).) The deposition notice lists

58 topics when subparts are considered. For eleven of the topics, the Plaintiffs ask for

responses on behalf of “Relevant Individuals,” a term the Plaintiffs define to include 214

named or referenced natural persons, including all 188 members of the Maryland General

Assembly, and three organizations. One of the organizations is the Maryland Democratic

Party, which is a nongovernmental entity.


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Without even considering the approximately 531 additional individuals employed

within the Department of Legislative Services and the Department of Planning,3 when the

11 topics must be prepared for on behalf of 214 “Relevant Individuals,” there are nearly

2,500 separate topics specified in the 30(b)(6) notice. Another federal court struck a notice

containing only 70 topics, which the court found required the corporate designee to “testify

on topics so vast in number, so vast in scope, so open ended, and so vague that compliance

with the notice would be impossible.” RM Dean Farms v. Helena Chemical Co., No.

2:11CV00105, 2012 WL 169889 at *1 (E.D. Ark. Jan 19, 2012).

The declaration of Linda H. Lamone, the State Administrator of Elections, states

that neither she nor any staff or member of the State Board of Elections was involved in

the 2011 congressional redistricting process, beyond providing publicly-available elections

data to the Department of Planning for use by the GRAC in the redistricting process. Ex.

9, Decl. of Linda H. Lamone, ¶ 5. No staff or member of the Board was a member of the

GRAC, staffed the GRAC, or was involved in drawing any of the maps created during the

2011 redistricting process. Id. In short, the State Board of Elections had no role in the

2011 redistricting process, outside of the provision of data to a principal department of the

Executive branch. There is thus no reason to believe that the Board of Elections has, or

ever had, any of the information sought in the 30(b)(6) notice.

3 See Maryland Manual Budget Page for Department of Planning,

http://msa.maryland.gov/msa/mdmanual/21dop/html/dopb.html; Maryland Manual Budget Page for Department of Legislative Services, http://msa.maryland.gov/msa/mdmanual/07leg/legser/html/legserb.html.


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Moreover, the information sought is not reasonably available to the State Board of

Elections because the independent entities and individuals from which the plaintiffs seek

this information are not employees of, subject to, or under the control of the State Board

of Elections. Indeed, even more so that with respect to many other state entities, the other

state entities and individuals about whom the Plaintiffs seek knowledge through the

30(b)(6) deposition are not even under common control with the State Board of Elections.

The State Board of Elections is governed by its five-member board. The board members

are appointed by the Governor with the advice and consent of the Senate, and they can only

be removed for good cause shown by the Governor. Md. Code Ann., Elec. § 2-101(c). The

State Administrator is appointed by the Board, with advice and consent of the Senate, and

serves at the pleasure of the Board. Id. § 2-103(b). By contrast, along with the General

Assembly members and their staffers (including former staff members to the extent they

possess privileged information), the Department of Legislative Services is part of the

Legislative Branch of the State Government. Md. Const. art. III, § 1; Md. Code Ann., State

Gov’t § 2-1202. Former Governor O’Malley and his staffers, to the extent they possess

privileged information, are under the control of the former Governor. The Department of

Planning is a principal department of the Executive Branch under the control of its

Secretary, who in turn reports to the current Governor. Md. Code Ann, State Gov’t § 8-

201(b)(15).

As such, the State Board of Elections cannot offer testimony as to the extent of these

entities’ and individuals’ knowledge of matters related to this lawsuit, and cannot be

required to obtain information from other entities and individuals. Covington, 2007 WL


13

1052460, at *1–2. Here, like in Covington, “plaintiffs essentially ask one entity, [the State

Board of Elections], to investigate” various other entities and unaffiliated individuals, “and

then provide such information to the plaintiffs during the course of a deposition.” Id. As

a separate entity, the State Board of Elections does not have “a duty to inquire into or

provide information as to” these other entities’ and individuals’ “knowledge regarding the

matters at issue.” Id.; cf. Coryn Grp. II, 265 F.R.D. at 239 (allowing 30(b)(6) deposition

of corporate entity “about the relationship and flow of money” among corporation and its

affiliates where corporate entity “provide[d] no facts to support its lack of responsive

knowledge” and where evidence showed entity and its affiliates “operat[ed] as a unit,

shar[ed] information amongst themselves . . . [and] share[d] many corporate officers in

common”). Although these entities, and the State officials who represent these entities,

occasionally work cooperatively, they do not have the same “goals or missions and do not

have the ability to share or control the agency’s agenda, documents or personnel.” N.Y. ex

rel. Boardman v. Nat’l R.R. Passenger Corp., 233 F.R.D. 259, 264 (N.D.N.Y. 2006) (citing

federalism and comity and finding that two independent state agencies “are not

interrelated” for discovery purposes when they “do not have a similar mission, and are

situated at different spectrums of New York State governance as established by the

constitution and legislation”).

For these reasons, topics 1, 2, 3, 4, 5, 10, 11, 12, 18, 20, 21, 22, and 23 should be

stricken or, in the alternative, should be limited to seek information within the control of

the State Board of Elections, which includes documents produced by the Defendants in this

litigation, and not any independent entity or unaffiliated individual.


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Further, even if not for the other issues already discussed, the deposition notice also

seeks information that is patently unavailable to the defendants under any circumstances

because the individuals who possess the information have asserted legislative privilege.

Because topics 1, 2, 3, 9, 10, 11, 12, 17, and 18 all seek information about legislative

activities related to the 2011 congressional redistricting, they should be stricken, or, in the

alternative, limited to seeking information within the control of the State Board of

Elections, which includes documents produced by the Defendants in this litigation, and not

any independent entity or unaffiliated individual. These issues related to legislative

privilege have been addressed in the memorandum in support of the motion for protective

order to quash non-party deposition subpoenas served on President Miller, Speaker Busch,

former GRAC Chair Jeanne Hitchcock, and Richard Stewart (ECF No. 114-1), and in the

non-parties’ response in opposition to the plaintiffs’ motion to compel material protected

by legislative privilege, which is being filed contemporaneously with this motion, and the

Defendants incorporate the arguments made in both of those briefs as though fully stated

herein. Moreover, because no employee of the State Board of Elections was involved in

the 2011 congressional redistricting process beyond providing publicly-available elections

data to the Department of Planning for use by the GRAC in the redistricting process, see

Ex. 9 (Lamone Decl.) ¶ 5, the Board has no relevant information to provide on this topic.

For the reasons discussed above, the Board is not required to prepare a designee on these

topics, which would require attempting to interview and gather documents from numerous

individuals who were never affiliated with the State Board of Elections and who have

asserted legislative privilege over the relevant material.


15

Deposition topics 15, 21, 22, 23, and 25 should also be stricken because they seek

information “more appropriately discoverable through contention interrogatories and/or

expert discovery.” Trustees of Boston Univ. v. Everlight Elecs. Co., No. 12-CV-11935-

PBS, 2014 WL 5786492, at *4 (D. Mass. Sept. 24, 2014) (holding that a party “may

properly resist a Rule 30(b)(6) deposition” on these grounds) (citing SmithKline Beecham

Corp. v. Apotex Corp., 2004 WL 739959, at *2 (E.D. Pa. March 23, 2004)). For example,

topic 15 seeks information on “[a]ny statistical measure that you contend demonstrates that

the boundaries of the Sixth Congressional District were drawn for Constitutionally

legitimate reasons”; and topic 22 seeks information on “[w]hether You contend that the

General Assembly of Maryland, the GRAC, and/or the Governor intended to dilute the

voting strength of Republican voters in the Sixth Congressional District because of the

political party with which they had affiliated, and the factual basis for Your contention.”

As a number of courts have recognized, a “Rule 30(b)(6) deposition is an overbroad,

inefficient, and unreasonable means of discovering an opponent’s factual and legal basis

for its claims.” Id.; see also SmithKline Beecham Corp. v. Apotex Corp., No. 98 C 3952,

2000 WL 116082, at * 9 (N.D. Ill. Jan. 24, 2000); Indep. Serv. Org. Antitrust Litig., 168

F.R.D. 651, 654 (D. Kan. 1996); United States v. District Council of New York City, No.

90 CIV. 5722 (CSH), 1992 WL 208284, at *15 (S.D.N.Y. Aug. 18, 1992). The State Board

of Elections “is not required to have counsel ‘marshall all of its factual proof’ and prepare

a witness to be able to testify on a given defense or [ ]claim.” Id. (quoting Indep. Serv.

Org. Antitrust Litig., 168 F.R.D. at 654); see also Wilson, 228 F.R.D. at 529 n.8 (“Whereas

the facts of a relevant incident or incidents are proper for 30(b)(6) inquiry, the contentions,


16

i.e. theories and legal positions, of an organizational party may be more suitably explored

by way of interrogatories and the Court may properly order . . . that contentions only be

inquired into in this fashion.”); Fidelity Mgmt. & Research Co. v. Actuate Corp., 275

F.R.D. 63, 64 (D. Mass. 2011) (explaining that a 30(b)(6) deposition is not the best method

for obtaining answers to contention interrogatories, in part, because “drawing the line

between questions which seek to elicit facts and questions which will lead to a revelation

of work-product matters can be difficult”). The same is true for topic 6, to the extent this

topic extends to the interrogatories identified as contention interrogatories in the

Defendants’ responses to the Plaintiffs’ first set of interrogatories.

Similarly, topic 24 should be stricken because it seeks information about the State

Board of Elections’ “justifications for the boundaries of the Sixth Congressional District

under the Proposed Congressional Plan, Senate Bill 1, and/or the Maryland Redistricting

Referendum, including but not limited to respect for communities of interest.” The topic

should be stricken as overly broad, inefficient, and unreasonable because it seeks the

theories and legal positions of defendants. See Wilson, 228 F.R.D. at 529 n.8 (theories and

legal positions more suitably explored by interrogatory than 30(b)(6) deposition).

Topics 9 and 13 should also be stricken because they are unreasonably vague, overly

broad, and inefficient. Topic 9 seeks information about the “intent and purpose of the

Proposed Congressional Plan, Senate Bill 1, and/or the Maryland Redistricting

Referendum with regard to Maryland’s Sixth Congressional District.” This topic is

unreasonably vague because it does not specify whose intent or purpose it was to take what

action with respect to the Proposed Congressional Plan, Senate Bill 1, and/or the Maryland


17

Redistricting Referendum. To the extent this topic seeks information related to the

subjective intent or purpose of the Relevant Individuals related to the presentation of the

Proposed Congressional Plan to the Governor, the passage of Senate Bill 1, and/or the

passing of the Maryland Redistricting Referendum, the topic is not relevant to the cause of

action asserted in this case, see ECF No. 88 at 33-34, and therefore is outside the scope of

discovery. Fed. R. Civ. P. 26(b)(1). Moreover, as to the Maryland Redistricting

Referendum, the topic is unreasonably overbroad because the intent or purpose of the

passage of the Maryland Redistricting Referendum is impossible to ascertain because the

Referendum was passed with the affirmative votes of 1,549,511 people, each of whom had

their own intent or purpose in voting for the referendum. To the extent this topic seeks

information related to the objective intent or purpose of the Relevant Individuals related to

the presentation of the Proposed Congressional Plan to the Governor, the passage of Senate

Bill 1, and/or the passing of the Maryland Redistricting Referendum, the topic is

unreasonably vague and cumulative because the topic could subsume any aspect of factual

information available about the congressional redistricting process and the information

reasonably available to the Defendants is available to the public or has been produced to

the Plaintiffs.

Topic 13 seeks information about “[s]ocio-economic, educational, homeownership,

and income differences between western Montgomery County and Garrett, Allegany,

Washington, and Frederick Counties.” This topic is unreasonably overbroad because the

State Board of Elections has no role in gathering these data and these topics are not within

the State Board of Election’s expertise. Further, this discovery “is obtainable from some


18

other source that is more convenient, less burdensome, or less expensive,” and thus is not

properly served on the State Board of Elections. Nicholas, 373 F.3d at 543; Fed. R. Civ.

P. 26(c)(i).

CONCLUSION

For the reasons set forth above, this Court should enter a protective order striking

deposition topics 1-25 and 29 in their entirety or, in the alternative, modifying the notice

in the manner specified above.

Respectfully submitted,

BRIAN E. FROSH Attorney General of Maryland

Dated: January 16, 2017 ___/s/__Jennifer L. Katz______________ JENNIFER L. KATZ (Bar No. 28973) SARAH W. RICE (Bar No. 29113) Assistant Attorneys General Office of the Attorney General 200 St. Paul Place, 20th Floor Baltimore, Maryland 21202 (410) 576-7005 (tel.); (410) 576-6955 (fax) [email protected]

Attorneys for Defendants


TABLE OF EXHIBITS Exhibit No. Title

1. Intentionally left blank

2. Defendants’ Certificate of Compliance with Local Rule 104.7

3. Plaintiffs’ Rule 30(b)(6) Deposition Notice

4. Plaintiffs’ First Requests for Production of Documents

5. Letter from Sandra Brantley to Stephen Medlock, Dec. 30, 2016

6. Letters from Sarah Rice to Stephen Medlock, Nov. 30, Dec. 6, and Dec. 9, 2016

7. Email from Stephen Medlock to Jennifer Katz, Dec. 13, 2016

8. Emails exchanged between Stephen Medlock and Jennifer Katz, Dec. 13, 2016–Jan. 3, 2017

9. Declaration of Lamone H. Lamone


EXHIBIT 2


IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

O. JOHN BENISEK, et al.,

Plaintiffs,

v.

LINDA H. LAMONE, et al.,

Defendants.

*

*

*

*

*

*

Case No. 13-cv-3233

* * * * * * * * * * * * * * * * * * * *

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 104.7

Under Local Rule 104.7, undersigned counsel hereby certifies that the following

actions were taken by counsel to resolve any discovery disputes susceptible to resolution

without intervention by the court with regard to the subject matter of Defendant’s Motion

for Protective Order filed January 16, 2017.

1. On January 12, 2017 at 2:30pm Sarah W. Rice, Jennifer Katz, Stephen M.

Medlock, Michael B. Kimberly, and Micah D. Stein convened for a teleconference to

discuss a discovery dispute that had arisen with relation to a notice of deposition under

Fed. R. Civ. Pro. 30(b)(6) electronically served on Defendants January 7, 2017 at 11:07PM.

2. Prior to the conference, on Tuesday, January 10, 2017, Ms. Katz sent a letter

outlining defendants’ general objections to the notice of deposition.

3. Later that same day, Mr. Medlock responded by letter.

4. Discerning that a dispute over the content of the deposition notice had arisen,

counsel arranged for a teleconference to meet and confer about the dispute and seek

resolution to any part of the dispute susceptible to resolution.

5. On January 12, 2017, at 11:07AM, counsel for defendants provided objections

to the deposition notice with specific objections to the separate topics noticed in an effort

to have the afternoon conference be as productive as possible.

6. After the objections were provided, Mr. Medlock expressed some concern that

there would not be sufficient time to review the objections. Ms. Katz offered wide

availability to reschedule the teleconference for the next day, but this proposal was declined

by Mr. Medlock.


7. At 2:30pm, the conference commenced. Counsel were able to engage in

productive discussion and identified topics to which a 30(b)(6) deponent could be

produced, at a later date, and be prepared to testify to topics 26-28 and 30-35, to the extent

the testimony is relevant to this litigation, within the scope of information known or

reasonably available to the Administrator and the State Board of Elections, and is still

required by the plaintiffs after the plaintiffs have reviewed outstanding discovery

responses.

8. Counsel were at an impasse, however, on the remainder of the topics. Moreover,

counsel have remained at an impasse with regard to what information, in possession of

entities and individuals not under the direction or control of the Administrator or the State

Board of Elections, is known or reasonably available to the Administrator or the State

Board of Elections. A closely related issue of the proper scope of document requests issued

in this case is posed in a potential motion to compel by the plaintiffs that is in the process

of informal briefing.

9. Having reached the limits of productive discussion, counsel adjourned at

approximately 3:30pm.

Dated: January 16, 2017 ___/s/__Sarah W. Rice______________

SARAH W. RICE (Bar No. 29113)

Assistant Attorney General

Office of the Attorney General

200 St. Paul Place, 20th Floor

Baltimore, Maryland 21202

(410) 576-7847 (tel.); (410) 576-6955 (fax)

[email protected]


EXHIBIT 3


1

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND

NOTICE OF DEPOSITION PURSUANT TO FED. R. CIV. P. 30(B)(6)

PLEASE TAKE NOTICE that, pursuant to Fed. R. Civ. P 30(b)(6), Plaintiffs shall take

the deposition by oral examination of Defendants by one or more officers, directors, managing

agents, or other persons who are designated to testify on Defendants’ behalf with respect to the

categories listed in Schedule A. The deposition will commence on January 23, 2017, and

continue until its completion, as permitted pursuant to Fed. R. Civ. P. 30(d)(1). The deposition

shall begin each day at 9:30 AM at the offices of Mayer Brown LLP, 1999 K Street N.W.,

Washington, D.C. 20006, or at such other time and place as may be agreed among counsel. The

deposition shall be shall be conducted before a person authorized to administer oaths and may be

recorded by stenographic and/or videographic means, and shall be used for all purposes in this

action, including trial.

SCHEDULE A

DEFINITIONS AND INSTRUCTIONS

1. Plaintiffs hereby incorporate by reference all definitions in Appendix D of the

Local Rules of the District of Maryland.

O. John Benisek, et al.

Plaintiffs,

vs.

Linda H. Lamone, et al.,

Defendants.

Case No. 13-cv-3233

Three-Judge Court


2

2. The term “Communication” means the transmittal of information by any means,

and includes letters, memoranda, facsimile transmissions, telephone conversations, telephone

logs and records, electronic mail messages, voicemail messages, and any and all “cc” or “bcc”

copies of the above.

3. The term “Governor” means former Maryland Governor Martin O’Malley, and all

staffers, employees, consultants, or officials that reported to him.

4. The terms “Governor’s Redistricting Advisory Committee” or “GRAC” mean the

committee appointed by the Governor on July 4, 2011 for the purpose of drafting a redistricting

plan and proposing a congressional map for Maryland’s eight congressional districts in light of

the 2010 United States Census results.

5. The term “Proposed Congressional Plan” refers to the new map for the state of

Maryland’s federal congressional districts adopted by the Maryland General Assembly as Senate

Bill 1 and signed into law by the Governor on October 20, 2011.

6. The terms “Senate Bill 1” OR “S.B. 1” means the Proposed Congressional Plan.

7. “Relevant Individuals” shall mean You, members of the GRAC, members of the

General Assembly, the Department of Legislative Services, the Department of Planning, former

Governor Martin O’Malley, the Maryland Democratic Party, Patrick Murray, Yaakov Weissman,

Jeremy Baker, Joseph Bryce, John McDonough, Karl Arro, Michele Davis, Richard Hall, John

Favazza, Kristin Jones, Victoria L. Gruber, Alexandra Hughes, Nancy Earnest, Joy Walker,

Raquel Guillroy, Matt Gallagher, Robert Garagiola, and Rick Abbruzzese.

8. “Considered,” “consideration,” “consider,” and “considering” shall mean using,

drafting, drawing, debating, studying, contemplating, examining, regarding, scrutinizing, looking

at, analyzing, appraising, evaluating, assessing, finalizing, or deciding.


3

9. “Maryland Redistricting Referendum” shall mean the statewide referendum

Question 5 on the 2012 ballot, asking voters whether they were “for” or “against” the Maryland

law “[e]stablish[ing] the boundaries of the State’s eight United States Congressional Districts

based on recent census figures, as required by the United States Constitution.”

10. “Other Litigation” shall mean Gorrell v. O’Malley, 1:11-cv-02975-CCB (D. Md.),

Fletcher v. Lamone, 8:11-cv-03220 (D. Md.); Olson v. O’Malley, 1:12-cv-00240 (D. Md.);

Dennis Whitley III v. Maryland State Board of Elections, 02-C-12-171365 (Anne Arundel Cty.

Cir. Ct.); Bouchat v. State of Maryland, 1:15-cv-02417 (D. Md.); and Parrott v. Lamone, 1:15-

cv-01849 (D. Md.).

11. Except where otherwise indicated, each Document request covers the time period

January 1, 2011 to November 30, 2011 (the “Relevant Time Period”).

TOPICS FOR EXAMINATION

1. The consideration of the Proposed Congressional Plan by any of the Relevant

Individuals during the Relevant Time Period.

2. The processes and steps taken by any of the Relevant Individuals to consider,

draft, draw, re-draw, or revise the Proposed Congressional Plan during the Relevant Time

Period.

3. The data provided to the GRAC or other Relevant Individuals during the GRAC’s

consideration, drafting, drawing, re-drawing, or revision of the Proposed Congressional Plan

during the Relevant Time Period.

4. Alternative Congressional maps considered by any of the Relevant Individuals

during the Relevant Time Period.

5. Comments, testimony, or feedback received by the GRAC, the Governor, or the


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General Assembly regarding the Proposed Congressional Plan, Senate Bill 1, or the Maryland

Redistricting Referendum during the period January 1, 2011 to December 1, 2012.

6. The factual basis for Defendants’ responses to Plaintiffs’ interrogatories in this

litigation.

7. The factual basis for Defendants’ responses to Plaintiffs’ requests for admissions

in this litigation.

8. The factual basis for your statement that: “One widely understood consequence of

the Plan was that it would make it more likely that a Democrat rather than a Republican would

be elected as [the] representative from the District.” ECF No. 104 at ¶ 31.

9. The intent and purpose of the Proposed Congressional Plan, Senate Bill 1, and/or

the Maryland Redistricting Referendum with regard to Maryland’s Sixth Congressional District.

10. Communications amongst the Relevant Individuals relating to the boundaries of

Maryland’s Sixth Congressional District.

11. Communications amongst the Relevant Individuals relating to political

gerrymandering or attempts to gain partisan advantage when drawing the boundaries of

Maryland’s Sixth Congressional District.

12. Communications amongst the Relevant Individuals relating to the Proposed

Congressional Plan and/or Senate Bill 1.

13. Socio-economic, educational, homeownership, and income differences between

western Montgomery County and Garrett, Allegany, Washington, and Frederick Counties.

14. The factual basis for your contention that the Proposed Congressional Plan did not

chill Republican voters in the Sixth Congressional district from voting, participation in political

campaigns, or political participation generally.


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15. Any statistical measure that you contend demonstrates that the boundaries of the

Sixth Congressional District were drawn for Constitutionally legitimate reasons.

16. Public statements made regarding the Proposed Congressional Plan, Senate Bill 1,

and/or the Maryland Redistricting Referendum during the period January 1, 2011 to December 1,

2012, including statements made by:

a. The Governor;

b. Former Attorney General Doug Gansler;

c. Senator Richard Madaleno;

d. Congresswoman Donna Edwards;

e. Senator C. Anthony Muse;

f. Senator Jamie Raskin;

g. Delegate Emmett C. Burns, Jr.;

h. Speaker Michael Busch;

i. Delegate Curt Anderson; and

j. Senate President Thomas V. Mike Miller.

17. Statements made on the floor of the Maryland House of Delegates or Maryland

Senate during the consideration of Senate Bill 1 and/or the Proposed Congressional Plan.

18. Communications between any of the Relevant Individuals and former Senator

Robert Garagiola, staffers for former Senator Robert Garagiola, and/or the U.S. House of

Representatives Campaign of Robert Garagiola during the Relevant Time Period.

19. Your prior statements regarding the intent and purpose of the Proposed

Congressional Plan, Senate Bill 1, and/or the Maryland Redistricting Referendum in Other

Litigation.


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20. Communications between the Relevant Individuals and Bruce E. Cain, Ph.D.

regarding the Proposed Congressional Plan and/or Senate Bill 1.

21. Whether You contend that the General Assembly of Maryland, the GRAC, and/or

the Governor intended to burden the representational rights of Republican voters in the Sixth

Congressional District because of the political party with which they had affiliated, and the

factual basis for Your contention.


the Governor intended to dilute the voting strength of Republican voters in the Sixth

Congressional District because of the political party with which they had affiliated, and the



the Governor used, or were influenced by, data reflecting prior voting patterns, voting history, or

party affiliation in deciding whether to draw the lines of the Sixth Congressional District, and the


24. Your justifications for the boundaries of the Sixth Congressional District under

the Proposed Congressional Plan, Senate Bill 1, and/or the Maryland Redistricting Referendum,

including but not limited to respect for communities of interest.

25. Whether you contend that the boundaries of the Sixth Congressional District

under the Proposed Congressional Plan, Senate Bill 1, and/or the Maryland Redistricting

Referendum are justified by respect for an “I-270 Corridor” community of interest, and the


26. The factual basis for Your laches defense.

27. The factual basis for Your waiver defense.


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28. The factual basis for Your estoppel defense.

29. The date on which You or Your Counsel reasonably anticipated litigation

regarding the Proposed Congressional Plan, Senate Bill 1, and/or the Maryland Redistricting

Referendum.

30. For the time period January 1, 2011 to the present, Your efforts to preserve

Documents, Communications, emails, and/or electronically stored information relevant to this

litigation, the Proposed Congressional Plan, Senate Bill 1, and/or the Maryland Redistricting

Referendum, including but not limited to:

a. the date that You or Your counsel sent a litigation hold or preservation notice

regarding this litigation;

b. the date that You or Your counsel sent a litigation hold or preservation notice

regarding Other Litigation;

c. the date that You or Your counsel sent a litigation hold or preservation notice

regarding the Proposed Congressional Plan;

d. the date that You or Your counsel sent a litigation hold or preservation notice

regarding Senate Bill 1;

e. the date that You or Your counsel sent a litigation hold or preservation notice

regarding the Maryland Redistricting Referendum;

f. the contents of any litigation hold or preservation notice that You or Your

Counsel sent regarding this litigation, Other Litigation, the Proposed

Congressional Plan, Senate Bill 1, and/or the Maryland Redistricting Referendum;

g. the individuals, officials, employees, agencies, entities, or third-parties to whom

You or Your counsel sent any litigation hold or preservation notice regarding this


8

litigation, Other Litigation, the Proposed Congressional Plan, Senate Bill 1, and/or

the Maryland Redistricting Referendum;

h. the steps that You or Your counsel took to suspend the deletion of Documents,

Communications, emails, and/or electronically stored information after You or

Your counsel sent any litigation hold or preservation notice regarding this

litigation, Other Litigation, the Proposed Congressional Plan, Senate Bill 1, and/or

the Maryland Redistricting Referendum; and

i. the steps that You or Your counsel took to ensure that third-parties suspended the

deletion of Documents, Communications, emails, and/or electronically stored

information after You or Your counsel sent any litigation hold or preservation

notice regarding this litigation, Other Litigation, the Proposed Congressional Plan,

Senate Bill 1, and/or the Maryland Redistricting Referendum.

31. For the time period January 1, 2011 to the present, Your efforts to collect


litigation, the parties’ joint stipulation of fact and law, Plaintiffs’ requests for production, and/or

Plaintiffs’ interrogatories, including but not limited to:

a. The date that You or Your counsel began collecting Documents,

Communications, emails, and/or electronically stored information relevant to this

litigation, the parties’ joint stipulation of fact and law, Plaintiffs’ requests for

production, and/or Plaintiffs’ interrogatories;

b. The individuals, officials, employees, agencies, entities, or third-parties from

whom Your or Your counsel collected Documents, Communications, emails,

and/or electronically stored information relevant to this litigation, the parties’


9

joint stipulation of fact and law, Plaintiffs’ requests for production, and/or

Plaintiffs’ interrogatories;

c. Whether the individuals, officials, employees, agencies, entities, or third-parties

from whom Your or Your counsel collected Documents, Communications,

emails, and/or electronically stored information relevant to this litigation, the

parties’ joint stipulation of fact and law, Plaintiffs’ requests for production, and/or

Plaintiffs’ interrogatories were provided with copies of the Plaintiffs’ requests for

production and/or interrogatories; and

d. How the individuals, officials, employees, agencies, entities, or third-parties from

whom Your or Your counsel collected Documents, Communications, emails,

and/or electronically stored information relevant to this litigation, the parties’

joint stipulation of fact and law, Plaintiffs’ requests for production, and/or

Plaintiffs’ interrogatories searched for and retrieved potentially relevant

Documents, Communications, emails, and/or electronically stored information.

32. For the time period January 1, 2011 to the present, Your efforts to review


litigation, the parties’ joint stipulation of fact and law, Plaintiffs’ requests for production, and/or

Plaintiffs’ interrogatories, including but not limited to:

a. The number of Documents, Communications, and emails that You or Your

counsel reviewed for relevance to Plaintiffs’ requests for production and

interrogatories;

b. Your methodology for searching for Documents, Communications, emails, and/or

electronically stored information relevant to Plaintiffs’ requests for production


10

and/or interrogatories, including any search terms, review technology, and/or date

filters that You or Your counsel used; and

c. The personnel that You or Your counsel employed to review Documents,

Communications, emails, and/or electronically stored information relevant to

Plaintiffs’ requests for production and/or interrogatories.

33. The factual basis for Your claims of privilege reflected in Your privilege log.

34. For the time period January 1, 2011 to the present, any Documents,

Communications, emails, and/or electronically stored information in the possession, custody, or

control of the Relevant Individuals that is relevant to this litigation, the parties’ joint stipulation

of fact and law, Plaintiffs’ requests for production, and/or Plaintiffs’ interrogatories that You or

Your counsel determined were or are missing, lost, deleted, physically destroyed, damaged

(physically or logically), or overwritten.

35. For the time period January 1, 2011 to the present, Your efforts to undelete,

retrieve, or otherwise restore documents and/or electronically stored information in the

possession, custody, or control of the Relevant Individuals that is relevant to this litigation, the

parties’ joint stipulation of fact and law, Plaintiffs’ requests for production, and/or Plaintiffs’

interrogatories that were or are missing, lost, deleted, physically destroyed, damaged (physically

or logically), or overwritten.

36. The authenticity of any Document or Communication produced by You or any

Relevant Individual in this litigation.

37. Whether any Document or Communication produced by You or any Relevant

Individual in this litigation constitutes a business record, as that term is used in Fed. R. Evid.

803(6).


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EXHIBIT 4


1

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND

PLAINTIFFS’ FIRST SET OF REQUESTS FOR PRODUCTION

Pursuant to Federal Rules of Civil Procedure 26 and 34 and Local Rule 104, Plaintiffs

request that Defendants produce for inspection and copying the documents described below, within

the time allotted by the Federal Rules of Civil Procedure, the Local Rules of the District of

Maryland, and the Orders of this Court, or at such other time and location as may be agreed upon by

counsel for the parties.

DEFINITIONS

1. Plaintiffs hereby incorporate by reference all definitions in Appendix D of the Local

Rules of the District of Maryland.

2. The term “Communication” means the transmittal of information by any means, and

includes letters, memoranda, facsimile transmissions, telephone conversations, telephone logs and

records, electronic mail messages, voicemail messages, and any and all “cc” or “bcc” copies of the

above.

3. The term “Governor” means former Maryland Governor Martin O’Malley.

4. The terms “Governor’s Redistricting Advisory Committee” or “GRAC” mean the

committee appointed by the Governor on July 4, 2011 for the purpose of drafting a redistricting plan

O. John Benisek, et al.

Plaintiffs,

vs.

Linda H. Lamone, et al.,

Defendants.

Case No. 13-cv-3233

Three-Judge Court


2

and proposing a congressional map for Maryland’s eight congressional districts in light of the 2010

United States Census results.

5. The term “Proposed Congressional Plan” refers to the new map for the state of Mary-

land’s federal congressional districts adopted by the Maryland General Assembly as Senate Bill 1

and signed into law by the Governor on October 20, 2011.

6. The terms “Senate Bill 1” OR “S.B. 1” means the Proposed Congressional Plan.

INSTRUCTIONS

1. Plaintiffs hereby incorporate by reference all instructions in Appendix D of the Local

Rules of the District of Maryland.

2. If you object to a Request, the grounds for each objection must be stated with

specificity and must state whether any responsive materials are being withheld on the basis of that

objection. If, in responding to a Request, you encounter any ambiguities when construing a request

or definition, your response shall set forth the matter deemed ambiguous and the construction used in

responding.

3. Your responses, objections, and production of documents and Electronically Stored

Information shall comply with the Discovery Guidelines for the U.S. District Court for the District of

Maryland.

4. All Documents produced should be Bates numbered sequentially, with a unique

number on each page, and with a prefix identifying the party producing the Document.

5. Except where otherwise indicated, each Document request covers the time period

January 1, 2011 to November 1, 2011 (the “Relevant Time Period”).

REQUESTS FOR PRODUCTION

1. All Communications regarding the Proposed Congressional Plan.


3

2. All Communications regarding any alternative redistricting plan that was not adopted.

3. All Documents reviewed or relied on by the GRAC during the planning, develop-

ment, negotiation, drawing, revision or re-drawing of the Proposed Congressional Plan or any

alternative redistricting plan not adopted.

4. All Documents reviewed or relied on by the members of the Maryland General

Assembly concerning the Proposed Congressional Plan or any alternative redistricting plan not

adopted.

5. All Documents reviewed or relied on by the Governor concerning the Proposed

Congressional Plan or any alternative redistricting plan not adopted.

6. All Documents related to public meetings held by the GRAC concerning the redist-

ricting process and Proposed Congressional Plan, including but not limited to, meeting minutes,

agendas, transcripts, and presentations.

7. All Documents used to plan or draw the Proposed Congressional Plan, or any alterna-

tive redistricting plan not adopted, including without limitation all data files related to election or

voter data; election redistricting software, including but not limited to, Maptitude and AutoBound

shapefiles and data, or data from any other district mapping software program(s), including data files

in draft form; and all 2010 United States Census data, whether adjusted or not adjusted.

8. All draft drawings of any congressional districts of the Proposed Congressional Plan

or any alternative redistricting plan not adopted, whether created by the GRAC or any other Person.

9. All Documents related to the proceedings in the Maryland General Assembly

regarding Senate Bill 1, including statements of purpose, procedures followed, committee reports,

and statements by members of the Maryland General Assembly.


4

10. Documents sufficient to show Your Document retention or destruction policies and

practices and all steps You took to retain and preserve documents related to this litigation, as well as

any deviations from these taken with respect to the Documents requested here.

11. All Documents related to any community of interest that You, the GRAC, or

members of the Maryland General Assembly contend would be protected, served, or grouped

together based on the changes to the Sixth Congressional District enacted by Senate Bill 1.

Dated: November 17, 2016

/s/ Michael B. Kimberly

Michael B. Kimberly, Bar No. [email protected]

Paul W. Hughes, Bar No. [email protected]

Stephen M. Medlock, pro hac [email protected]

E. Brantley Webb, pro hac [email protected]

Micah D. Stein, pro hac [email protected]

Mayer Brown LLP1999 K Street NWWashington, D.C. 20006(202) 263-3000 (office)(202) 263-3300 (facsimile)

Attorneys for Plaintiffs


EXHIBIT 5


Bnr¡,¡ E. FnosnATTONEY GENER,AL

Errze¡¡:rn F, HennrsCHIEF DEPUTY ATTONEY GENERAL

Canorvx A. QuerrnocxrDEPUTY ATTORNEY GENEML

Do¡¡e Hrrr SmroNDEPUry ATTORNEY GENEML

THE ,{ITORNEY GENERAL OF MARYLAND

OFFICE OF COUNSEL TO THE GENERAL ASSEMBLY

Sexonn BBNsoN Bn¡NrrevCOUNSEL TO THE GENERAL ÀSSEMBLY

Knrr¡nvN M, RorveDEPUTY COUNSEL

Jenrruv M. McCovASSISTANT ÄTTORNEY GENERÂL

D.ryro'Wi Sr¡vppnASSISTANT ATTORNEY GEN ERAL

December 30,20L6

Stephen M, MedlockMayer Brown, LLP1999 K Street, NWWashington, DC 20006

Re: Benisek v. Lamone, No. JKB-13-3233 (D. Md.)

Dear Mr. Medlock:

Ënclosed are docurnents ¡n response to the subpoenas served on SenatePresidentThomas V, Mike Miller, Jr., Speaker of the House Michael E. Busch, andSenator Richard S. Madaleno, Jr. You also served a subpoena on Delegate CurtAnderson. He has no materials responsive to the subpoena. We have also encloseda privilege log each for President Miller, Speaker Busch, and Senator Madaleno,indicating that some documents and information have been withheld because theyare protected under either the attorney-client privilege or the legislative privilege.

The Fourth Circuit recognizes that "Ilegislative privilege clearly falls withinthe category of accepted privileges." E,E.O.C, v. Washington Suburban SanitaryComm'n,631 F.3d I74,180 (4th Cir.2OL1) (hereinafter "yySSC") (citing Burtnickv. McLean, 76 F.3d 611, 613 (4th Cir, 1996)) .In Burtnick, the court announcedthat "[t]he existence of testimonial privilege is the prevailing law" in the FourthCircuit. 76 F.3d at 613, Plaintiffs seek, through the subpoenas, to invade individualGeneral Assembly members' deliberations over the drafting of legislation by seekingdocuments compiled by legislators, or their close aides at their direction, to producethe legislation, Accordingly, legislative privilege applies because the members'activities and contribution to any draft maps, reports, or other materials thatresulted in Senate Bill l are legislative in nature, The Fourth Circuit declared inWSSC that if the parties "sought to compel information from legislative actors abouttheir legislative activities, they would not need to comply," WSSC,631 F.3d at 181.Moreover, "[ê] litigant does not have to name members or their staffs as parties toa suit in order to distract them fr:om their legislative work. Discovery procedurescan prove just as intrusive," Id. See also North Carolina State Conf. v. McCrory,2 0 1 s w L 1 2 6 8 3

:::.::: i;l lll:l ;.1i1:li: ::::::::-:ïm u n ca'[' n s

4to-946-56oo . 3or-97o-56oo . r*.4ro-946-56or . rw 4ro-946-540r ' 3or-97o-t4or


Stephen M. MedlockDecember 30, 2016Page 2

between legislators or legislators and staff and also declining to order a privilege logbecause to do so would "undermine the very purpose and function of legislativeprivilege, unduly intruding into legislative affairs and imposing significant burdenson the legislative process"). Thus, any effort to compel information about thelegislative activity of those engaging in the legislative activity should be rejected,

A final note about the maps on the enclosed CD, which are in response toQuestion 3. The maps labeled Option 1, Option 2, Option 3 and Option 4, were,upon his best information and belief, generated by the personal legislative aide ofPresident Miller, As the events took place more than five years ago, PresidentMiller's aide could not accurately recall whether those maps were provided to anythird party.To the extent that the maps are protected by legislative privilege,President Miller waives privilege to the maps.

Sincerely,

Sandra Be nson Brant eyCounsel to the General Assembly


EXHIBIT 6








EXHIBIT 7


1

Katz, Jennifer

From: Medlock, Stephen M. <[email protected]>Sent: Tuesday, December 13, 2016 1:41 PMTo: Katz, Jennifer; Rice, Sarah; Darsie, JeffreyCc: Kimberly, Michael B.; Hughes, Paul W.; Webb, BrantleySubject: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Jennifer: When we initially agreed to 10 depositions per side in the joint discovery plan, we believed that we would be able to conduct informal discovery with current and former delegates and senators who were not represented in this matter. Following on our recent exchange of letters, however, we must now resort to command discovery. Accordingly, we propose raising the number of depositions per side from 10 to 15. By Friday, can you please let us know whether you will consent to this mutual increase in the number of depositions? Regards, Steve Stephen M. Medlock Associate Mayer Brown LLP 1999 K Street NW | Washington, DC 20006 T: (202) 263‐3221 | F: (202) 263‐5221 [email protected]

__________________________________________________________________________

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EXHIBIT 8


1

Katz, Jennifer

From: Katz, JenniferSent: Tuesday, January 03, 2017 5:01 PMTo: Medlock, Stephen M.; Kimberly, Michael B.; Hughes, Paul W.; Webb, BrantleyCc: Rice, SarahSubject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Steve, We do not agree to your modifications. If you reject the terms we have offered, we reiterate our demand that you do not engage in any ex parte contact with represented persons to conduct what you have termed “informal discovery” in this case, by which we understand you are not seeking to speak with State officials in order to redress your clients’ grievances. You may contact counsel to the General Assembly, AAGs Sandra Brantley and Kathryn Rowe, at (410) 946‐5600, who will communicate your requests to speak with their clients. Assistant Attorney General Meghan Casey is representing former Governor O’Malley and his former staffers concerning this litigation. She can be reached at (410) 576‐6324 or [email protected]. Best, Jennifer Jennifer Katz Assistant Attorney General, Civil Division Office of the Attorney General 200 Saint Paul Place, 20th Floor Baltimore, Maryland 21202 [email protected] (410) 576-7005

From: Medlock, Stephen M. [mailto:[email protected]] Sent: Tuesday, January 03, 2017 10:43 AM To: Katz, Jennifer <[email protected]>; Kimberly, Michael B. <[email protected]>; Hughes, Paul W. <[email protected]>; Webb, Brantley <[email protected]> Cc: Rice, Sarah <[email protected]> Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB‐AME.FID1259210]

Jennifer: Thanks for your reply. We are willing to agree to your conditions, but with the following modifications:

1) We don’t think it’s appropriate to place artificial limits on the number of interviews that can be conducted; if a legislator wants to speak with us, we should be allowed to speak with him or her.

2) We propose that we start by sending a list of 10 current and former legislators, legislative staff members, or staffers in the Governor’s office whom we would like to interview.

3) Counsel to the General Assembly will initiate contact with those legislators, explaining that plaintiffs’ counsel would like to interview them in connection with pending litigation concerning the 2011 congressional redistricting legislation.


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4) If those individuals make themselves available for an interview, the parties will jointly interview them (each side

having equal time to ask questions) in the presence of counsel to the General Assembly. While counsel for the General Assembly may advise individuals of their right to assert privilege in appropriate circumstances, counsel may not assert the privilege on anyone’s behalf.

5) Plaintiffs may, at their own expense, arrange for the telephone interview to be transcribed by a court reporter.

6) And the parties will jointly collaborate on drafting an affidavit from the individual interviewed in the event the individual expresses a willingness to sign an affidavit.

If you agree to these terms, we propose that the parties submit a joint amended scheduling order to the Court that contains these parameters, so that the Court is apprised that these interviews will take place. Regards, Steve Stephen M. Medlock Mayer Brown LLP 1999 K Street NW | Washington, DC 20006 T: (202) 263‐3221 | F: (202) 263‐5221 [email protected]

From: Katz, Jennifer [mailto:[email protected]] Sent: Friday, December 30, 2016 10:38 AM To: Medlock, Stephen M.; Kimberly, Michael B.; Hughes, Paul W.; Webb, Brantley Cc: Rice, Sarah Subject: Re: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210] Steve, Good morning. We have considered your proposal concerning informal discovery. As I initially stated, any interviews with current or former legislators regarding the subject matter of this lawsuit will need to be coordinated through counsel to the General Assembly, Assistant Attorneys General Sandra Brantley and Kathryn Rowe. Accordingly, we sent your proposal to Ms. Brantley and Ms. Rowe. Based on their concerns about adequately protecting their clients' privileges, we propose the following. (1) The plaintiffs send a list of 5 current or former legislators they would like to interview to counsel to the General Assembly; (2) counsel to the General Assembly will initiate contact with those legislators, explaining that plaintiffs' counsel would like to interview them in connection with pending litigation concerning the 2011 congressional redistricting legislation; (3) if those legislators make themselves available for an interview, the parties will jointly interview them (each side having equal time to ask questions) in the presence of counsel to the General Assembly; (4) counsel to the General Assembly may raise any objections necessary to protect the member's legislative privilege, if not waived, and to protect privileges of any other General Assembly member; and (4) the parties will jointly collaborate on drafting an affidavit from the current or former legislator in the event the legislator expresses a willingness to sign an affidavit. Best, Jennifer Jennifer Katz


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Assistant Attorney General

From: Medlock, Stephen M. <[email protected]> Sent: Thursday, December 22, 2016 3:13 PM To: Katz, Jennifer Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, Sarah Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB‐AME.FID1259210] Jennifer: At this point, we anticipate that we would want to conduct approximately 10 such interviews. Regards, Steve Stephen M. Medlock Mayer Brown LLP 1999 K Street NW | Washington, DC 20006 T: (202) 263‐3221 | F: (202) 263‐5221 [email protected]

From: Katz, Jennifer [mailto:[email protected]] Sent: Thursday, December 22, 2016 2:49 PM To: Medlock, Stephen M. Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, Sarah Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210] Thank you, Steve. So that we can provide a response by December 27, will you provide us with an estimation of the number of current or former legislators with whom you would seek to hold informal, telephone interviews. We will also need to coordinate with the Assistant Attorneys General who represent General Assembly members. Best, Jennifer Jennifer Katz Assistant Attorney General, Civil Division Office of the Attorney General 200 Saint Paul Place, 20th Floor Baltimore, Maryland 21202 [email protected] (410) 576-7005

From: Medlock, Stephen M. [mailto:[email protected]] Sent: Thursday, December 22, 2016 11:13 AM To: Katz, Jennifer <[email protected]> Cc: Webb, Brantley <[email protected]>; Kimberly, Michael B. <[email protected]>; Darsie, Jeffrey <[email protected]>; Hughes, Paul W. <[email protected]>; Rice, Sarah <[email protected]> Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB‐AME.FID1259210]


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Jenifer and Sarah: We have given some thought to your offer to engage in non‐ex parte, informal discovery. To that end, here is our proposal: (1) the parties can jointly reach out to current or former legislators to hold informal, telephone interviews, (2) if those individuals make themselves available for an interview, the parties will jointly interview them (each side having equal time to ask questions), and (3) the parties will jointly collaborate on drafting an affidavit from the current or former legislator. Of course, Plaintiffs reserve their right to depose current and former legislators and other current and former state officials, but we believe that this may obviate the need for enlarging the number of depositions. Please let us know if you agree with this proposal by December 27, so that we can jointly begin reaching out to current and former legislators that we would like to informally interview. Regards, Steve Stephen M. Medlock Mayer Brown LLP 1999 K Street NW | Washington, DC 20006 T: (202) 263‐3221 | F: (202) 263‐5221 [email protected]

From: Katz, Jennifer [mailto:[email protected]] Sent: Friday, December 16, 2016 4:17 PM To: Medlock, Stephen M. Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, Sarah Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210] Steve, Thank you for your email. We continue to think it is premature to agree to 5 more depositions at this time, given the likelihood that a number of the individuals you seek to depose cannot be compelled to testify in this matter. We would move to quash subpoenas served on members of the GRAC, as well as current or former members of the Maryland General Assembly who seek to assert the testimonial privilege. Thus, we continue to believe that 10 depositions is sufficient. We are open to reexamining our position should the Court not grant those motions to quash, but would anticipate seeking to extend the discovery period to accommodate any increased discovery upon which we may agree. I note that you say you originally thought you might be able to obtain through “informal discovery” information you now intend to seek through deposition. To the extent you use the term “informal discovery” in its standard use – i.e., the counsel-facilitated exchange of information without resort to formal discovery mechanisms – you have not proposed any such mechanism, nor have we rejected it. What we objected to – ex parte contact with represented parties – is not informal discovery. If you would like to discuss mechanisms other than depositions to obtain information that is properly subject to discovery, whether formal or informal, please let us know. Best, Jennifer Jennifer Katz Assistant Attorney General, Civil Division


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[email protected] (410) 576-7005

From: Medlock, Stephen M. [mailto:[email protected]] Sent: Friday, December 16, 2016 9:27 AM To: Katz, Jennifer <[email protected]> Cc: Webb, Brantley <[email protected]>; Kimberly, Michael B. <[email protected]>; Darsie, Jeffrey <[email protected]>; Hughes, Paul W. <[email protected]>; Rice, Sarah <[email protected]> Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB‐AME.FID1259210] Jennifer: We do not believe that Plaintiffs have to disclose precisely who they plan to depose in order to agree on a relatively small extension in the number of deponents. Nevertheless, in order to reach an agreement on this matter, we will provide you with additional information regarding who Plaintiffs plan to depose. At this juncture, Plaintiffs plan to depose 5 GRAC members, the Defendants’ 30(b)(6) representative, at least 5 current or former members of the Maryland General Assembly, and at least one member of the Department of Legislative Services. In addition, we may depose at least one official in the Maryland Democratic Party and one of Maryland’s U.S. Congressional representatives. In many cases, we would have sought information from these individuals through informal discovery. However, given our recent exchange of correspondence, Plaintiffs are not now seeking this informal discovery. As you noted, the discovery window in this matter is fairly tight. Please let us know by close of business today if you will agree to increase the number of fact witness depositions in this matter from 10 per side to 15 per side. Regards, Steve Stephen M. Medlock Mayer Brown LLP 1999 K Street NW | Washington, DC 20006 T: (202) 263‐3221 | F: (202) 263‐5221 [email protected]

From: Katz, Jennifer [mailto:[email protected]] Sent: Wednesday, December 14, 2016 3:57 PM To: Medlock, Stephen M. Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, Sarah Subject: Re: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210] Steve, please see the forwarded email. I am working from home today and somehow managed to send this to everyone but you. Best, Jennifer

From: Katz, Jennifer Sent: Wednesday, December 14, 2016 3:52:20 PM To: Katz; Jennifer


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Cc: Webb; Brantley; Kimberly; Michael B.; Darsie; Jeffrey; Hughes; Paul W.; Rice; Sarah Subject: Re: Benisek v. Lamone (D. Md.): Depositions [MB‐AME.FID1259210]

Steve, We think that the 10 depositions you originally proposed, and to which we agreed, is more than enough given the subject matter of the litigation and, given the very tight discovery schedule, we are not inclined to agree to more at this time. You have not identified a list of who you intend to depose, but we assume that you may seek to depose members of the GRAC and others who are protected by legislative privilege and cannot be compelled to testify in this matter. Thus, we continue to believe that 10 depositions is more than adequate. Further, when we agreed to the 10 depositions per side, we did not understand that agreement to be conditioned on your ability to seek pre‐discovery from current and former state officials represented by the Attorney General's Office. If you want to provide us with a list of who you seek to depose, we can further discuss your request, and try to reach an agreement. Best, Jennifer

On Dec 13, 2016 1:41 PM, "Medlock, Stephen M." <[email protected]> wrote: Jennifer: When we initially agreed to 10 depositions per side in the joint discovery plan, we believed that we would be able to conduct informal discovery with current and former delegates and senators who were not represented in this matter. Following on our recent exchange of letters, however, we must now resort to command discovery. Accordingly, we propose raising the number of depositions per side from 10 to 15. By Friday, can you please let us know whether you will consent to this mutual increase in the number of depositions? Regards, Steve Stephen M. Medlock Associate Mayer Brown LLP 1999 K Street NW | Washington, DC 20006 T: (202) 263‐3221 | F: (202) 263‐5221 [email protected] __________________________________________________________________________ This email and any files transmitted with it are intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. If you are not the named addressee you should not disseminate, distribute or copy this e‐mail.


EXHIBIT 9



O. JOHN BENISEK, et al., Plaintiffs, v. LINDA H. LAMONE., et al., Defendants.

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Case No. 13-cv-3233

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DECLARATION OF LINDA H. LAMONE

I, Linda H. Lamone, under penalty of perjury, declare and state: 1. I am over the age of 18 and am competent to testify to the matters stated

below.

2. Since 1997, I have been the State Administrator of Elections.

3. My official duties are set forth in Maryland law. I am authorized to “employ and supervise: (i) a deputy administrator, who shall serve as State Administrator in the event the State Administrator resigns, becomes disabled, or dies, pending the appointment of a successor State Administrator; and (ii) pursuant to the State Personnel and Pensions Article, other staff of the State Board.” I also am authorized to “supervise the operations of the local boards”; “perform all duties and exercise all powers that are assigned by law to the State Administrator or delegated by the State Board”; and “implement, in a uniform and nondiscriminatory manner, a single, uniform, official, centralized, interactive computerized statewide voter registration list.” Md. Code Ann., Elec. Law § 2-103.

4. As set forth under Maryland law, the State Board of Elections is statutorily required to “manage and supervise elections in the State and ensure compliance with the requirements of [the Election Law] and any applicable federal law by all persons involved in the elections process.” Md. Code Ann., Elec. Law § 2-102(a). Pursuant to that authority, the Board has specific authority to “receive, maintain, and serve as a depository for elections documents, materials, records, statistics, reports, certificates, proclamations, and other information prescribed by law or regulation,” in addition to other statutory obligations. Id. § 2-102(b).


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5. Although my staff provides elections data to the Department of Planning and, if requested, the Department of Legislative Services for potential use in the redistricting process in the same manner my staff provides elections data to state entities with need for that data in their regular course of business, no employee or member of the State Board of Elections served on the Governor’s Redistricting Advisory Committee (“GRAC”), served as staff members to the GRAC, or had any role in developing any maps that were created as part of the 2011 redistricting process.

6. The following individuals are not current or former staff or members of the State Board of Elections:

a. Thomas V. Mike Miller, Jr.

b. Michael E. Busch

c. Jeanne Hitchcock

d. Richard Stewart

e. James King

f. Former Governor Martin O’Malley

g. Patrick Murray

h. Yaakov Weissman

i. Jeremy Baker

j. Joseph Bryce

k. John McDonough

l. Karl Aro

m. Michele Davis

n. Richard Hall

o. John Favazza

p. Kristin Jones

q. Victoria L. Gruber

r. Alexandra Hughes

s. Nancy Earnest

t. Joy Walker


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u. Raquel Guillory

v. Matt Gallagher

w. Robert Garagiola

x. Rick Abbruzzese.

7. I am aware that the members of the GRAC, Thomas V. Mike Miller, Jr., Michael E. Busch, Jeanne Hitchcock, Richard Stewart, and James King, have asserted or intend to assert legislative privilege in this case over their legislative activities related to Maryland’s 2011 congressional redistricting plan. I am aware that Patrick Murray, Yaakov Weissman, Jeremy Baker, John Favazza, Kristin Jones, Victoria L. Gruber, Alexandra Hughes, Nancy Earnest, and Joy Walker are current or former staffers to Senate President Miller and House of Delegates Speaker Busch. Given the assertions of legislative privilege in this case, neither I nor any other staff or member of the State Board of Elections has any ability to obtain information from any GRAC member or their staffers concerning their conduct as it relates to the 2011 redistricting process.

8. I am aware that former Governor O’Malley intends to assert legislative privilege in this case over his legislative activities related to Maryland’s 2011 congressional redistricting plan. I am aware that Joseph Bryce, Raquel Guillory, Matt Gallagher, and Rick Abbruzzese are former aides to Governor O’Malley. I further am aware that John McDonough, the former Secretary of State, participated in the 2011 redistricting process at the behest of Governor O’Malley and therefore acted as his close aide during that process. Given the assertions of legislative privilege in this case, neither I nor any other staff or member of the State Board of Elections has any ability to obtain information from Governor O’Malley, his former aides, or the former Secretary of State, concerning their conduct as it relates to the 2011 redistricting process.

9. With regard to the individuals identified in paragraphs 7 and 8, neither I nor any other staff or member of the State Board of Elections has any ability to obtain documents that are being withheld by any of these individuals based on an assertion of legislative privilege.

10. With regard to documents gifted by Governor O’Malley to the State Archives, based on inquiries made on my behalf, I am aware that neither I nor any other staff or member of the State Board of Elections has direct access to these documents because the files have not been sorted into public files and non-public files to which access restrictions would attach. Accordingly, as any other member of the public may do, I or another staff or member of the State Board of Elections, must request access to these documents. In response to such a request, I am aware that the Maryland State Archives staff, with assistance from Assistant Attorneys General representing the Archives and the


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former Governor, not the State Board of Elections, would appraise the records and remove or redact any material legally exempt from public access. I also am aware that the Archives search and copy fees would apply to the State Board of Elections, as they would apply to any member of the public making such a request.

11. I am aware that Robert Garagiola is a former member of the Maryland State Senate. Neither I nor any other staff or member of the State Board of Elections has access to any documents possessed by former Senator Garagiola.

12. I am aware that Karl Aro is the former executive director of the Department of Legislative Services and that Michele Davis is a current employee within that Department. The State Board of Elections has access to documents provided to it by the Department of Legislative Services, but has no control over that department or its current or former employees. As such, neither I nor any other staff or member of the State Board of Elections may compel or demand that any current or former employee of that entity provide any information related to the 2011 redistricting process. Because of my the limited authority of the State Board of Elections, neither I nor any of my staff or member of the State Board of Elections has access to or control over information related to the 2011 redistricting process within the custody of the Department of Legislative Services. I can only request that the Department provide such information.

13. Although, to date, the Department of Legislative Services has not asserted legislative privilege in response to any request for access to documents made on my behalf, it is my understanding that they would do so as to any material to which a member of the General Assembly was asserting such privilege. Accordingly, any such material would not be available to me upon my request or request of any of my staff or member of the State Board of Elections.

14. I am aware that Richard Hall is the former Secretary of the Department of Planning. The Department of Planning is an independent Executive branch agency of the State of Maryland. The State Board of Elections has access to documents provided to it by the Department of Planning, but has no control over that department or its current or former employees. As such, neither I nor any other staff or member of the State Board of Elections may compel or demand that any current or former employee of that entity provide any information related to the 2011 redistricting process. Because of the limited authority of the State Board of Elections, neither I nor any of my staff or member of the State Board of Elections has access to or control over information related to the 2011 redistricting process within the custody of the Department of Planning. I can only request that the Department provide such information.





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Case No. 13-cv-3233

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ORDER

Upon consideration of the motion for protective order from the deposition notice

served under Fed. R. Civ. Pro. 30(b)(6) on Linda H. Lamone, State Administrator of

Elections, and David J. McManus, Jr, Chair, State Board of Elections, and opposition

thereto, it is this ___________ day of ____________, 2017, ORDERED:

That the motion for protective order from Rule 30(b)(6) deposition (ECF No. 118)

is GRANTED, and

That the notice of deposition is hereby MODIFIED as follows:

(1) Topics 1-25 and 29 are stricken.

__________________________ United States District Judge James K. Bredar
